In his Complaint, Mr. Benckini does not identify the Mayor of Coopersburg by name. 1

 The Court repeatedly extended filing deadlines in order to afford Mr. Benckini the 2

flexibility and the opportunities often provided to pro se litigants. However, the Court denied a

final Motion to Continue the Deadline for Dispositive Motions (Docket No. 39) and instead,

ordered that all dispositive motions be filed by October 1, 2007. Mr. Benckini ignored this firm

deadline and filed his Motion for Summary Judgment on October 9, 2007. Although Rule 6

requires that litigants respect the scheduling of their cases or suffer the consequences (in this

case, arguably denial of the motion as being out of time), the Court will consider Mr. Benckini’s

Motion on its merits. The Court also again will overlook Mr. Benckini’s complete failure to

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GENE C. BENCKINI : CIVIL ACTION

t/a :

BENCKINI NURSERIES, :

Plaintiff :

:

v. :

:

COOPERSBURG BOROUGH et al., :

Defendants : NO. 05-5122

MEMORANDUM AND ORDER

Gene E. K. Pratter, J. May 19, 2008

Pro se Plaintiff Gene C. Benckini has sued Coopersburg Borough, Coopersburg Police

Officers Daniel Trexler, Herb Hevener, Joseph Hetten, Jason Leindecker, Jeffrey Tapler, William

Narhgang, Matt Hinkel, and the Mayor of Coopersburg (hereinafter “Coopersburg Defendants”). 1

Viewing the Complaint indulgently, Mr. Benckini alleges various civil rights violations pursuant

to 42 U.S.C. § 1983 and a wrongful death claim arising under state law. Mr. Benckini’s Motion

for Summary Judgment and the Coopersburg Defendants’ Motion for Summary Judgment 2

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 1 of 19
follow court procedures as outlined in Rule 56 and Local Rule 7.1, Rules Mr. Benckini was

obligated to follow notwithstanding his pro se status.

2

presently await the Court’s resolution. For the reasons set forth below, the Court will deny the

Benckini Motion for Summary Judgment and grant the Coopersburg Defendants’ Motion for

Summary Judgment.

I. FACTUAL BACKGROUND

Mr. Benckini commenced this action in September 2005 when he filed suit against the

Coopersburg Defendants and Chief Deputy District Attorney Matthew D. Weintraub, who had

prosecuted Mr. Benckini in an earlier criminal matter. The Court dismissed all claims against

Mr. Weintraub and many of the claims against the Cooperburg Defendants in August 2006. See,

Benckini v. Coopersburg Borough, 2006 U.S. Dist. LEXIS 60885 (E.D. Pa. August 18, 2006). 

That memorandum recites an extensive factual background of this case. Id. at *3-8. A brief

summary of the remaining array of claims follows to facilitate an understanding of those claims. 

Mr. Benckini alleges that on June 20, 2005, Officer Narhgang stopped Mr. Benckini’s

truck for the sole purpose of “badgering” him and falsely asserted that Mr. Benckini’s loader was

not properly secured on his trailer. Compl. ¶ 27. Mr. Benckini further asserts that on September

1, 2005, while being transported to the Lehigh County Prison he was forced to sit on his

handcuffed wrists, causing him pain. Mr. Benckini alleges that at the prison, Officer Hinkel

forcefully pulled him out of the police cruiser cutting his arm on the door jam. Id. ¶ 28. In

addition, Mr. Benckini alleges that the Coopersburg Defendants’ alleged misconduct caused the

wrongful death of his mother on December 23, 2003. Id. ¶ 32. 

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3

II. DISCUSSION

A. The Legal Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” FED. R. CIV. P. 56(c). An issue is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is

“material” if it might affect the outcome of the case under governing law. Id. 

A party seeking summary judgment always bears the initial responsibility for informing

the trial court of the basis for the motion and identifying those portions of the record that it

believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears

the burden of proof on a particular issue at trial, the moving party’s initial burden can be met

simply by “pointing out to the district court that there is an absence of evidence to support the

non-moving party’s case.” Id. at 325. After the moving party has met its initial burden, “the

adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e). Summary

judgment is appropriate if the non-moving party fails to rebut by making a factual showing

“sufficient to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Under Rule 56, the

Court must view the evidence presented via the motion in the light most favorable to the

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4

opposing party. Anderson, 477 U.S. at 255. The non-moving party’s pro se status does not

change the substantive law in these regards.

B. The Violation of Constitutional Rights and Qualified Immunity

Officers Nahrgang and Hinkel assert that 1) they did not violate Mr. Benckini’s

constitutional rights on June 20, 2005 or September 1, 2005, and 2) even if they violated his

constitutional rights, they are entitled to qualified immunity for their actions. Claims made under

§ 1983 for damages against government officials like police officers almost always raise issues

concerning the availability of qualified immunity. Under the defense of qualified immunity,

“[g]overnment officials performing discretionary functions are ‘shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Sharrar v. Felsin, 128 F.3d 810, 826

(3d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 

The Supreme Court has established a two-step test for determining whether an officer’s

actions may be shielded from liability under the doctrine of qualified immunity. First, the Court

must consider whether an officer’s actions violated a constitutional right. If the officer’s conduct

did not violate a constitutional right, the analysis ends here. Saucier v. Katz, 533 U.S. 194, 201

(2001). However, if an officer’s conduct did violate a constitutional right, the Court must

proceed to the second part of the test. The Court must determine whether the constitution right at

issue was clearly established in light of the specific factual circumstances of the particular case. 

Id. at 201-202. “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in

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5

the situation he confronted.” Id. at 202. The second step of the test requires consideration of

whether the officer can establish that he “mistakenly but reasonably believed that his actions

were constitutionally permissible.” Hung v. Watford, 2002 U.S. Dist. LEXIS 23064, at *2 (E.D.

Pa. Dec. 3, 2002). Accordingly, qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341 (1986). 

C. Unlawful Seizure: June 20, 2005

Mr. Benckini alleges that Coopersburg Police Officer William Nahrgang unlawfully

seized his person through a traffic stop lacking probable cause on June 20, 2005. Mr. Benckini

asserts that the officer stopped and ticketed him to harass him rather than for any legal reason. 

Compl. ¶ 27. Officer Nahrgang avers that he had probable cause to issue Plaintiff citations for

operating a vehicle with an unsecured load in violation of 75 Pa. C.S.A. §4903 (“securing loads

in vehicles”). See, Commonwealth v. Casterlin, 336 Pa. Super. 170, 173 (1984) (explaining that

§4903 “mandates that loads be fastened so as to prevent their coming loose resulting in a hazard

to other users of the highway”).

An automobile stop is a Fourth Amendment “seizure” although “the purpose of the stop

is limited and the resulting detention quite brief,” so any stop must be reasonable under the

circumstances to pass constitutional muster. Delaware v. Prouse, 440 U.S. 648, 653 (1979). “As

a general matter, the decision to stop an automobile is reasonable where the police have probable

cause to believe that a traffic violation has occurred.” Whren v. U.S., 617 U.S. 806, 810 (1996). 

“Probable cause to arrest exists when the facts and circumstances within the arresting officer’s

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 5 of 19
 The issue of qualified immunity must be resolved at the earliest possible time because

3

the privilege will be effectively lost if the case is erroneously permitted to go to trial. Bennett v.

Murphy, 274 F.3d 133, 136 (3d Cir. 2001).

6

knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense

has been or is being committed by the person to be arrested.” Orsatti v. New Jersey State Police,

71 F.3d 480 , 483 (3d Cir. 1995). 

With respect to the initial inquiry under qualified immunity, Mr. Benckini has presented

sufficient evidence to, at a minimum, raise a genuine issue as to whether a constitutional

violation occurred. Officer Nahrgang asserts that he observed Mr. Benckini transporting an

unsecured skid loader, but Mr. Benckini claims that his loader was properly fastened to his

trailer. Accordingly, the Court will look to the second part of the test for qualified immunity: 

whether the constitution right to be free from unlawful seizures was clearly established in light of

the specific factual circumstances of the present case. 

Since qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law,” Blackhawk v. Pennsylvania, 381 F.3d 202, 215 (3d Cir. 2004), a

determination that probable cause was lacking does not require a finding that the arresting officer

is liable for damages, Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 1999). As the Supreme

Court explained, “it is inevitable that law enforcement officials will mistakenly conclude that

probable cause is present, and we have indicated that in such cases those officials – like other

officials who act in ways they reasonably believe to be lawful – should not be held personally

liable.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).3

“Because the focus is on whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 6 of 19
7

Brosseau v. Haugen, 543 U.S. 194, 198 (2004). “A court presented with a claim of qualified

immunity must examine both the law that was clearly established at the time of the alleged

violation and the facts available to the officer at that time, and must then determine, in light of

both, whether a reasonable official could have believed his conduct was unlawful.” Paff, 204

F.3d at 431. The officer’s subjective intent is irrelevant. Showers v. Spangler, 182 F.2d 165,

171 (3d Cir. 2000).

Assuming, arguendo, the existence of a constitutional violation, the Court must

determine whether the constitutional right in question was “clearly established” such that a

reasonable law enforcement officer could have believed that his conduct was lawful under the

circumstances. Blackhawk, 381 F.3d at 215; see also, Brosseau, 543 U.S. at 199 (“The relevant

dispositive inquiry in determining whether a right is clearly established is whether it would be

clear to a reasonable police officer that his conduct was unlawful in the situation he

confronted.”).

In this case, there is no question that the right at issue, namely, the right to be free from

seizure through traffic stops except when made with probable cause, was clearly established at

the time Officer Nahrgang stopped Mr. Benckini’s truck. See, Prouse, 440 U.S. at 653. 

However, after determining that a right was clearly established at the time in question, the Court

must consider whether Officer Nahrgang reasonably, albeit mistakenly, concluded that he had

probable cause to make the traffic stop. Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d

Cir. 1995). 

Officer Nahrgang asserts that he conducted the traffic stop after “observ[ing] Gene C.

Benckini transporting an unsecured skid steer loader on the trailer attached to his Ford truck.” 

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 7 of 19
8

(MSJ-D, Ex. B ¶ 3 (Nahrgang Aff.)). After stopping the truck, Officer Nahrgang conducted an

investigation and “confirmed [his belief] that the loader was unsecured and posed a hazard.” Id.

¶ 5. As a result, he issued Mr. Benckini related traffic citations. Id. ¶ 6. Officer Nahrgang stated

in his affidavit, “Based upon my years of experience, there was reasonable suspicion to stop Mr.

Benckini and probable cause to issue these citation.” Id. Accordingly, Officer Nahrgang based

his traffic stop on first-hand observations and his experience as a police officer. Mr. Benckini

asserts that Officer Nahrgang acted, at least in part, in order to harass Mr. Benckini, but the

officer’s subjective intent is irrelevant. Showers, 182 F.2d at 171 

In addition, on August 9, 2005, a state court magistrate judge found Mr. Benckini guilty

of improper fastening of a load. (MSJ-D, Ex. B, ¶ 7.) Such a finding provides additional

evidence of the objective reasonableness of Officer Nahrgang’s decision to conduct the traffic

stop. Mr. Benckini appealed the conviction, and the District Attorney’s Office of Lehigh County

again prosecuted the citation. Mr. Benckini eventually was found not guilty. Id. However, this

result, of course, does not dictate the result of Mr. Benckini’s civil claim here in terms of

probable cause itself or, relatedly, in terms of the reasonableness of Officer Nahrgang’s beliefs

on the issue. "Neither an acquittal of the defendant in a criminal prosecution, nor the ignoring of

the bill against him by the grand jury, nor his discharge by the examining magistrate, constitute

proof of want of probable cause, or shifts the burden of proof to the defendant in the civil action." 

O’Rourke v. Krapf, 2002 U.S. Dist. LEXIS 18358, at *28 (E.D. Pa. 2002) (quoting Simpson v.

Montgomery Ward & Co., 46 A.2d 674, 676 (Pa. 1946)). 

Mr. Benckini presents no evidence that at the time of the vehicle stop Officer Nahrgang

did not reasonably believe that he had probable cause to stop Mr. Benckini’s truck and issue the

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 8 of 19
9

citations. Rather, Mr. Benckini repeatedly asserts without evidence that his equipment was

properly secured and that Officer Nahrgang stopped him only “to badager [sic] and falsely

charge” him. Plaintiff’s Reply to Defendants’ Response to Motion for Summary Judgment ¶ 3. 

Even viewed in the light most favorable to Mr. Benckini, the evidence merely supports a finding

that Officer Nahrgang was mistaken about the security of Mr. Benckini’s loader, not that he was

unreasonable in his assessment of the situation.

In contrast, Officer Nahrgang has presented evidence that based on his years of

experience as a police officer and what he observed the day in question, he believed that Mr.

Benckini’s loader was not legally secured onto his trailer as well as evidence that at least one

Commonwealth court believed the same. In other words, even if Officer Nahrgang did not have

probable cause to conduct a traffic stop, it was objectively reasonable for him in the actual

situation to believe based on his observations and his experience as a police officer that the

loader was not properly secured. Accordingly, the Court finds that even if the June 20, 2005

traffic stop violated Mr. Benckini’s constitutional rights, Officer Nahrgang is entitled to qualified

immunity from suit because his conclusion that he had probable cause to stop Mr. Benckini’s

truck was reasonable under the particular circumstances. The Court finds that Officer Nahrgang

is protected by the doctrine of qualified immunity with respect to Mr. Benckini’s Fourth

Amendment claim and may not be held personally liable. 

D. Malicious Prosecution

Mr. Benckini does not limit his allegations arising from the June 20, 2005 traffic stop to

unlawful seizure of his person. When viewed generously, his Complaint also asserts in his

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 9 of 19
10

Complaint that a malicious prosecution followed the traffic stop for his allegedly unsecured

loader. Although Mr. Benckini’s traffic citation necessitated two court appearances prior to his

ultimately being found not guilty, the record establishes that Mr. Benckini did not suffer a

constitutional deprivation sufficient to maintain a malicious prosecution claim. To prevail on

such a claim, 

(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in

plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the

defendants acted maliciously or for a purpose other than bringing the plaintiff to justice;

and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure

as a consequence of a legal proceeding.

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). 

The issuance of a traffic citation and the resulting court appearances simply do not result

in deprivation of liberty sufficient to support a malicious prosecution claim. The court in Dibella

v. Borough of Blackwood, 407 F.3d 599 (3d Cir. 2005) explained that “the type of constitutional

injury the Fourth Amendment is intended to redress is the deprivation of liberty accompanying

prosecution, not prosecution itself.” Id. at 603. See also, Laufgas v. Patterson, 206. Fed. Appx.

196, 198 (3d Cir. 2006) (finding that prosecution without “onerous types of pretrial non-custodial

restrictions” did not constitute a Fourth Amendment seizure). In Dibella, the court held that the

plaintiffs failed to establish a Fourth Amendment seizure as a result of a legal proceeding

because “they were only issued a summons; they were never arrested; they never posted bail;

they were free to travel; and they did not have to report to Pretrial services.” Id. The plaintiffs’

required attendance at their trial was not enough to support their malicious prosecution claim. 

“Attending one’s trial is not a government ‘seizure’ in a 42 U.S.C. § 1983 malicious prosecution

action.” Id. Compare, Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d. Cir. 1998) (finding

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 10 of 19
11

a seizure where the plaintiff was required to post a significant bond, attend multiple court

hearings and his arraignment, contact Pretrial Services on a weekly basis, and remain within the

borders of Pennsylvania and New Jersey). 

Here, Mr. Benckini suffered only one alleged deprivation of liberty as a result of his

traffic citations: the requirement that he appear in court to challenge his traffic citations. As

such, he was not seized through malicious prosecution, and his claim for malicious prosecution

must fail.

E. False Arrest: September 1, 2005

Paragraph 28 of Mr. Benckini’s Complaint arguably can be interpreted to include

allegations that he was falsely arrested and/or imprisoned on September 1, 2005 by Officer

Hinkel. The Pennsylvania torts of false arrest and false imprisonment are essentially the same

actions. Olender v. Township of Bensalem, 32 F. Supp. 2d 775, 791 (E.D. Pa. 1999). 

The Fourth Amendment prohibits a police officer from arresting a person without

probable cause. Paff v. Kaletenbach, 204 F.3d 425, 435 (3d Cir. 2000). To assert a §1983 false

arrest claim, a plaintiff must demonstrate that the arresting officer lacked probable cause to make

the arrest. Garcia v. County of Bucks, Pennsylvania, 155 F. Supp. 2d. 259, 265 (E.D. Pa. 2001). 

“Probable cause exists when the totality of facts and circumstances are sufficient to warrant an

ordinary prudent officer[’s belief] that the party has committed an offense.” Id. (citing Sharrar v.

Felsing, 128 F.3d 810, 817-18 (3d Cir. 1997)); see also Dowling v. City of Philadelphia, 855

F.2d 136,141 (3d Cir. 1998) (holding that it is well established that when an officer makes an

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 11 of 19
12

arrest pursuant to a facially valid warrant, the officer is deemed to have acted with probable

cause). As such, a §1983 claim for false imprisonment will fail if the arrest was based on

probable cause. Russoli v. Salisbury Township, 126 F. Supp. 2d 821, 852-53 (E.D. Pa. 2000). 

The Coopersburg Defendants assert that Mr. Benckini was arrested on September 1, 2005

pursuant to a facially valid warrant issued by a judge. (MSJ-D, Ex. C ¶ 2.) The existence of

probable cause here turns on the validity of that underlying warrant. See, Rogers v. Powell, 120

F.3d 446, 453 (3d Cir. 1997). Because Mr. Benckini neither alleges that the warrant was

somehow invalid nor offers any evidence that would undermine the warrant’s validity, Plaintiff

has no basis for a § 1983 false arrest claim even if his conviction now was to be overturned.

The Coopersburg Defendants further argue that the record establishes that on December

15, 2006, Mr. Benckini was convicted of the charges stemming from his September 1, 2005

arrest. (MSJ-D, Ex. D at 1, 4.) When an individual has been convicted of the crime for which he

was arrested and subsequently attempts to bring a § 1983 claim concerning the arrest or

conviction, he “must prove that the conviction or sentence has been reversed on direct appeal,

expunged by Executive Order, declared invalid by a state tribunal authorized to make such a

determination, or called into question by a Federal Court’s issuance of a Writ of Habeas Corpus.”

Mosely v. Yaletsko, 275 F. Supp. 2d 608, 615 (E.D. Pa. 2003) (citing Heck v. Humphrey, 512

U.S. 477, 486-87 (1984)). “A claim for damages bearing that relationship to a conviction or

sentence that has not been invalidated is not cognizable under § 1983.” Id. Taking the evidence

in the light most favorable to Mr. Benckini, the Court finds that no constitutional violation

occurred. Because Mr. Benckini’s conviction for forgery and impersonating a public servant has

not been overturned or otherwise successfully challenged, he cannot maintain a claim for false

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 12 of 19
13

arrest stemming from his September 1, 2005 arrest.

F. Excessive Force: September 1, 2005

Mr. Benckini claims that when he was arrested on September 1, 2005, Officer Hinkel

made Mr. Benckini’s handcuffs “real tight on the Plaintiff’s wrists,” and, upon reaching Lehigh

County Prison, “the Officer reached in and grabbed the plaintiff pullin[g] him out forcefully

cutting his left arm on the door jam . . . .” Compl. ¶ 28. The use of excessive force can be an

unlawful “seizure” under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989);

Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004). 

A plaintiff alleging an excessive force claim must demonstrate that the arresting officer’s

seizure of the plaintiff was unreasonable. Bronstad v. Honeybrook Twp., 211 Fed. App’x 118,

123 (3d Cir. 2007). The right to use a certain degree of physical coercion or threat may

accompany the right to make an arrest. “‘[N]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge's chambers' violates the Fourth Amendment.” Graham, 490

U.S. at 394 (quoting Johnson v. Glock, 481 F.2d 1028, 1033 (2d Cir. 1973)). In deciding

whether challenged conduct constitutes excessive force, a court must determine the objective

“reasonableness” of the challenged conduct, considering “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officer or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. 

1. Handcuffs

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14

Mr. Benckini has presented in his Complaint no allegation that he ever complained that

his handcuffs were excessively tight. Mere tight handcuffing without more is not sufficient to

support a claim of excessive force in an arrest situation. Karkut v. Target Corp., 453 F. Supp. 2d

874, 887 (E.D. Pa. 2006). However, in his Motion for Summary Judgment, Mr. Benckini alleges

that he plead with Officer Hinkel “to loose the hand cuffs [sic] because they were cutting into

[his] wrists and cutting off blood flow,” but the officer simply ignored him. Id. at ¶ 4.D. Officer

Hinkel denies that Mr. Benckini ever complained about his handcuffs. (MSJ-D, Ex. C ¶ 5.) 

In Kopec V. Tate, 361 F.3d 772 (3d Cir. 2004), the Third Circuit Court of Appeals

reversed a grant of summary judgment in an excessive force case involving tight handcuffs. In

Kopec, the plaintiff asserted that he was in intense pain that would have been obvious to any

officer. He said he complained of the pain and actually fainted due to its intensity. In addition,

the plaintiff alleged nerve damage in his wrist which required treatment from a hand-surgeon for

more than a year. Id. at 774. While the court rejected the grant of summary judgment for the

defendant, it cautioned that the “opinion should not be overread as we do not intend to open the

floodgates to a torrent of handcuff claims.” Id. at 777. 

In the Court’s considered view, Mr. Benckini’s case more closely follows Giles v. Davis,

427 F.3d 197 (3d Cir. 2005). In Giles, the court found that a plaintiff who merely complained of

pain without more and who never sought independent medical care for alleged injuries from his

handcuffs could not survive summary judgment. Id. at 207-08. Alleged discomfort simply is not

enough. Accordingly, even if Mr. Benckini did complain about discomfort from the handcuffs,

without more (of which Mr. Benckini articulates nothing), this claim of excessive force cannot

survive on this theory of liability.

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15

2. Forceful Removal from the Police Cruiser

Mr. Benckini supports his claim of excessive force with a second allegation, however. 

He asserts that Officer Hinkel forcefully pulled him from the police cruiser, cutting his arm on

the door jam. Complaint ¶ 28. However, Mr. Benckini notes in his Reply Brief that he “couldn’t

move his legs in order to get out at the prison,” id. ¶ 3, so Mr. Benckini seems to admit that

Officer Hinkel’s assistance was necessary. While Plaintiff asserts that Officer Hinkel “angerly”

[sic] pulled him from the car, Reply Brief ¶ 3, the officer’s mood is not at issue. The facts taken

in the light most favorable to Mr. Benckini cannot support any allegation that Officer Hinkel

purposefully caused Mr. Benckini’s arm to contact the door jam. There is no evidence that any

harm – namely, Mr. Benckini’s arm striking the door jam – was done intentionally. See, Thomas

v. City of Erie, 236 Fed. Appx. 772, 776 (3d Cir. 2007) (upholding summary judgment for the

defendants where there was no proof police officers intentionally struck plaintiff’s head on a van

while placing him into the vehicle). 

While Mr. Benckini asserts that he told the intake nurse at the prison that he was injured,

see, Compl. ¶ 28, Officer Hinkel asserts that Mr. Benckini did not tell him, the judge at his

arraignment, or any prison employee that he was injured. (MSJ-D, Ex. C ¶¶ 5-7.) To be sure,

prison intake records indicate that Mr. Benckini was not injured or bleeding when he entered the

facility and contain no evidence that Mr. Benckini ever mentioned any injury at the time it was

allegedly inflicted upon him. (MSJ-D, Ex. C.) Officer Hinkel noted that the prison will not

accept individuals who are injured, and that the prison readily accepted Mr. Benckini. Id. at ¶ 7. 

Mr. Benckini’s situations parallels that in Thomas v. City of Erie, 236 Fed. Appx. 772. 

There the Third Circuit Court of Appeals affirmed the granting of summary judgment to police

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 15 of 19
16

officers who forced the plaintiff onto the ground during his arrest, pulled his arms behind him,

and struck his head against a police van while loading him into the vehicle. The court found the

officers actions during the arrest itself reasonable due to the plaintiff’s uncooperative response to

their instructions. When considering the striking of the plaintiff’s head, the court focused on the

fact that there was no evidence that the officers purposefully struck the plaintiff against the van

and no evidence of any resulting injury. Although the plaintiff eventually saw a doctor for his

alleged injuries, “[t]he only doctor to ever see [the plaintiff] simply told him to go home and

‘take it easy.’” Id. at 776. Like the plaintiff in Thomas, Mr. Benckini presents no evidence of

intentional maliciousness on the part of Officer Hinkel, so even if what Mr. Benckini claims

about his interactions with Officer Hinkel is true, there is insufficient evidence to prove that

Officer Hinkel used excessive force in removing him from the police cruiser. See also, Giles,

427 F.3d at 207-08 (granting summary on excessive force claim where there were no obvious

indicators of the plaintiff’s pain and where the plaintiff never sought or received medical care for

alleged injuries). 

Taking the facts in the light most favorable to Mr. Benckini, the Court finds no

constitutional violations occurred while Officer Hinkel was transporting Mr. Benckini to the

prison.

G. Wrongful Death

Mr. Benckini alleges that the Coopersburg Defendants’ actions forced his elderly mother

from Mr. Benckini’s home and into a “retirement home,” where she subsequently “died of a

broken heart.” Complaint ¶ 32. In one of the prior suits that Mr. Benckini brought before Judge

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17

Berle Schiller, Benckini v. Ford, 05-1417, 2005 U.D. Dist. LEXIS 11883 (E.D. Pa. June 16,

2005), the Court dismissed Mr. Benckini’s wrongful death claim for failure to state a claim. Id.

at *13. Judge Schiller noted that Mr. Benckini’s “claim that his mother died of a broken heart as

a result of Defendants’ actions is simply not cognizable under Pennsylvania’s wrongful death

statute.” Id. (citing 42 Pa. C.S. § 8301(a) (1988) (permitting wrongful death action to recover

damages for death of an individual caused by wrongful act or neglect or unlawful negligence or

violence)). 

As in Benckini v. Ford, the Complaint and the resulting discovery in the present action

“contain[] no allegations that even remotely tie the actions of” the Coopersburg Defendants “to

the unfortunate death of [Mr.] Benckini’s mother.” Id. Accordingly, even when viewed in the

most generous light, Mr. Benckini’s wrongful death claim cannot survive summary judgment. 

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 17 of 19
18

III. CONCLUSION

For the reasons discussed above, the Court denies Mr. Benckini’s Motion for Summary

Judgment in its entirety and grants the Coopersburg Defendant’s Motion for Summary Judgment

in its entirety. An appropriate Order consistent with this Memorandum follows.

BY THE COURT:

S/Gene E.K. Pratter

GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 18 of 19
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GENE C. BENCKINI : CIVIL ACTION

t/a :

BENCKINI NURSERIES, :

Plaintiff :

:

v. : NO. 05-5122

:

COOPERSBURG BOROUGH et al., :

Defendants :

ORDER

AND NOW, this 19th day of May 2008, IT IS HEREBY ORDERED that Plaintiff

Benckini’s Motion for Summary Judgment (Docket No. 49) is DENIED and Coopersburg

Defendants’ Motion for Summary Judgment (Docket No. 44) is GRANTED.

The Clerk of Court shall hereby CLOSE this case for all purposes, including statistics.

BY THE COURT:

S/Gene E.K. Pratter

GENE E. K. PRATTER

UNITED STATES DISTRICT JUDGE

Case 2:05-cv-05122-GEKP Document 68 Filed 05/21/08 Page 19 of 19